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Opinion of the court: In the case of the Miamis.

respects, as she treats her own citizens, and thereby weaning them from the ancient attachment to their own customs, they are none the less a separate people, under the protec tion of the general government. This policy may eventu ally succeed in disbanding the tribe, but until it does, the Indians cannot look to Kansas for protection, nor can the general laws of the State taxing real estate within its limits reach their property.

But, it is said, the protection promised the Shawnees is not accorded to the Weas, in the treaty of August, 1854. Not so, for in the tenth article, they agree "to commit no wrong on either Indian or citizen; and if difficulties should arise, to abide by the laws of the United States in such cases made and provided, as they expect to be protected and have their rights vindicated by those laws." Did not the government accord to them the protection invoked, by executing the treaty? It surely did not need that the United States should say in words, we agree to protect you and vindicate your rights. But the 11th article fixes beyond dispute the reciprocal relations of the general government and these Indians. It declares the object of the treaty is to advance the interests of the Indians; and if it should prove ineffectual, “it was agreed that the President, with the advice and consent of the Senate, should adopt such policy in the management of their affairs as in his judgment should be proper, or Congress might make such provision by law as experience should prove to be necessary." How far the powers of the President or Congress extend under this article, it is unnecessary to discuss or decide. It is sufficient to say, that it leaves the Indians most clearly under the protection of the general government, and withdraws their property from the jurisdiction of Kansas.

IN THE CASE OF THE MIAMIS.

The principle of the foregoing cases of the Shawnee and Wea tribes of Indians, is also decisive of this controversy. The Miami tribe hold their head rights in severalty, by vir

Opinion of the court: In the case of the Miamis.

tue of the provisions of the treaty which was proclaimed by the President on the 4th of August, 1854.*

It is unnecessary to pursue the history of this tribe through the various treaties which have been concluded between them and the United States. It is sufficient to state that they are a nation of people, recognized as such by the general government in the making of treaties with them, and the relations always maintained towards them, and cannot, therefore, be taxed by the authorities of Kansas. Their tribal organization is fully preserved, and they are under the supervision of an agent, who resides in the county where their lands are situated. It is not necessary to decide, until the question arises, what powers have been conferred on Congress, or the President, by virtue of the 11th article of the treaty of 1854, being the same as the 11th article of the Wea treaty. There is, however, one provision in the Miami treaty-being in addition to the securities furnished the Shawnees and Weas-which, of itself, preserves the Miami lands from taxation. This particular provision exempts the. lands from "levy, sale, execution, and forfeiture." It is argued, that these words refer to a levy and sale under judicial proceedings, but such a construction would be an exceedingly narrow one, whereas enlarged rules of constructiou are adopted in reference to Indian treaties. In speaking of these rules, Chief Justice Marshall says: "The language used in treaties with the Indians shall never be construed to their prejudice, if words be made use of which are susceptible of a more extended meaning than their plain import as connected with the tenor of their treaty."+

Applying this principle to the case in hand, is it not evident that the words "levy, sale, and forfeiture" are susceptible of a meaning, which would extend them to the ordinary proceedings for the collection of taxes? Taxes must be first levied, and they cannot be realized without the power of Bale and forfeiture, in case of non-payment. The position, it seems to us, is too plain for argument. The object of the

* 10 Stat. at Large, 1093.

† 6 Peters, 582.

Statement of the case.

treaty was to hedge the lands around with guards and restrictions, so as to preserve them for the permanent homes of the Indians. In order to accomplish this object, they must be relieved from every species of levy, sale, and forfeiture-from a levy and sale for taxes, as well as the ordinary judicial levy and sale.

The judgment of the Supreme Court of Kansas in all three cases was REVERSED, and the causes remanded, with directions to enter a judgment in conformity with the opinions above given in the several cases.

THE NEW YORK INDIANS.

1. Where Indians, being in possession of lands, their ancient and native homes, the enjoyment of which, "without disturbance by the United States," has been secured to them by treaty with the Federal government, with the assurance that the lands shall remain theirs until they choose to sell them," the State in which the lands lie has no power to tax them, either for ordinary town and county purposes or for the special purpose of surveying them and opening roads through them.-The case of The Kansas Indians (supra, p. 737), approved.

2. A statute of a State authorizing a sale of such lands for taxes so laid, is void, even though the statute provide that "no sale, for the purpose of collecting the tax, shall, in any manner, affect the right of the Indians to occupy the land."

3. Where Indians, under arrangements approved by the United States, agree to sell their lands to private citizens, and to give possession of them at the expiration of a term of years named, a taxation of the lands before the efflux of the term is premature; even though a sale for the nonpayment of the taxes might not take place until after the time when, if they fulfilled their agreements, the Indians would have left the land; and even though any sale would be subject to the proviso named in the preceding paragraph.

1. A deed under a sale for taxes, and purporting to convey the lands to the purchaser, even with the qualification of such a proviso as that in the third paragraph, would, in law, be a disturbance of the Indian tribe.

ERROR to the Court of Appeals of New York; the case being thus:

In 1786, and before the adoption, therefore, of the Fed

Statement of the case.

eral Constitution, the State of Massachusetts, which laid claim to four tracts of land in Western New York then occupied by native Indians (Senecas, chiefly), and known respectively as the Alleghany, Cattaraugus, Buffalo Creek, and Tonawanda reservations, entered, at the conclusion of some disputes, into an agreement with the State of New York by which New York ceded to Massachusetts, and her grantees, in fee, the right of pre-emption from those Indians and all estate in the reservations, except jurisdiction and sovereignty, which it was agreed should belong to the State of New York. By the fourth article of this compact New York stipulated thus:

"The said Indian reservations, so long as they shall remain the property of Massachusetts, shall be exempt from all taxes whatever, and no general or State tax shall be charged on the lands of the said reservations thereafter to be granted by Massachusetts, or on the occupants or proprietors of such lands, until fifteen years after the confirmation of such grants in the manner mentioned in the compact; but the said lands, and the occupants thereof, during the said period shall be subject to town and county charges or taxes only."

Before the adoption of the Constitution, the then United States, and after its adoption, the Federal government, made several treaties with these Indians;* the Treaty of Canandaigua, November 11, 1794, being one,† by which the land in those reservations were acknowledged to belong to them, the sail Indians, and by which it was agreed that the United States would "never claim" the same, nor disturb the Indians, and that the land should "remain theirs until they chose to sell the same to people of the United States."

In 1791 Massachusetts parted with her rights in these reservations, and the same had, in 1838, become vested in Ogden & Fellows. In that year, 1838, a treaty was made be

Treaty of Fort Stanwix, Oct. 22, 1784, 7 Stat. at Large, 15; Treaty of Fort Harmar, Jan’y 9, 1788, Id. 33; Treaty of Genesee, Sept. 15, 1797, Id. 501; Treaty of Buffalo Creek, June 30, 1802, Id. 70; Treaty of January 15 1848, Id. 530; Treaty of May 20, 1842, Id. 586.

7 Stat. at Large, 41.

Statement of the case.

tween the United States and the Indians, providing for the removal of the latter to the west of the Mississippi River; and at the same treaty a deed of conveyance was executed between the Seneca nation and Ogden & Fellows in fee, as joint tenants of the four reservations. The treaty provided for the removal of the Indians within five years. It was to become obligatory on the parties only after being proclaimed by the President. And as this proclamation was not made till April 4, 1840, no right (as the treaty was construed by the officers of the Federal government, a construction in which Ogden & Fellows acquiesced) accrued to Ogden & Fellows till April 4, 1845.

Before the expiration of these five years, differences arose between the Indians and Ogden & Fellows, and in order to settle them, a new treaty was made in 1842 between the United States and the Indians; and a deed was executed between Ogden & Fellows and the Indians, by which it was agreed that the Indians should remain in possession of two of the reservations, to wit, the Alleghany and Cattaraugus, with the same right and title in all things that they had possessed before the sale. The two others (the Buffalo Creek and Tonawanda) being, by the deed, ceded to Ogden & Fellows.

The Indians remained in possession accordingly of the two retained reservations.

In 1840, May 9th, the legislature of New York passed an act, by which it authorized a highway tax to be assessed upon the Alleghany and Cattaraugus reservations (the two still in possession of, and subsequently agreed to be retained by, the Indians); and the tax was assessed.

In the following year, May 4th, 1841, the same legislature authorized the assessment of other taxes for making roads upon those same two reservations, and on one of the others also, the Buffalo Creek.

This act of 1841 contained eight sections.

The first authorized the board of supervisors of Erie County to appoint commissioners to lay out, open, and construct roads across the Cattaraugus reservation lying within the county, and the same in respect to the supervisors of the

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